Narmada Bachao Andolan: A Dam, a Displacement and a Divided Court
Chapter Twenty-Six
Syllabus topic 1, "Water"
Pages 105 to 109 of 885
In one line
The Sardar Sarovar dam was challenged in 1994, after its construction had begun in 1987, and the Supreme Court let it rise to 90 metres at once and beyond that only in step with the relief and rehabilitation of the people it displaced.
In the wording a student can write in an exam: in Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751, the majority held that a challenge to the environmental clearance of 1987 was barred by laches, that a court will not sit in appeal over a policy decision on a large project which the Government has considered, that the displacement of tribal people does not by itself violate their fundamental rights where a proper rehabilitation package exists, and it allowed construction up to 90 metres at once and any further raising of the height only pari passu with the implementation of relief and rehabilitation, on clearance by the Relief and Rehabilitation Sub-group of the Narmada Control Authority; Bharucha J dissented, holding that the clearance had been given before the data on the project's environmental impact were collected and assessed.
The facts
Facts. The Sardar Sarovar Project on the Narmada is a multi-purpose project of a dam, a canal and a hydro-electric component, planned to serve Gujarat, Madhya Pradesh, Maharashtra and Rajasthan. The Narmada Water Disputes Tribunal's award of 1979 had allocated the water and fixed the height. Environmental clearance was granted in 1987. Construction began. The petition was filed in 1994 by a movement opposing the project, contending that the clearance had been given without the environmental impact studies that were themselves made a condition of it, that the relief and rehabilitation of the very large number of people to be displaced, many of them tribal, was inadequate, and that the submergence of forest and of tribal land violated articles 21 and 300A.
Held. The majority, delivered by Kirpal J with the Chief Justice, held that the petition had been filed years after the project had begun and that the challenge to the 1987 clearance was barred by laches; that the Court would not go into the merits of a policy decision on a project of this magnitude where the Government had applied its mind; that displacement of tribal people from their land does not per se violate their fundamental rights, provided a proper rehabilitation package is in place, and that resettlement in a developed area may improve their condition; and that the environmental and rehabilitation aspects were being supervised by the Narmada Control Authority and its sub-groups. It permitted construction to continue: up to 90 metres at once, the Relief and Rehabilitation Sub-group having already cleared that height, and any further raising only pari passu, which means step for step, with the implementation of relief and rehabilitation, and on the clearance of the Relief and Rehabilitation Sub-group, given after consulting the three Grievance Redressal Authorities. Beyond 90 metres the Environment Sub-group also had to give environment clearance at each stage, and the Narmada Control Authority was to permit each raising after obtaining both clearances.
Narmada Bachao Andolan: A Dam, a Displacement and a Divided Court
Bharucha J dissented. The environmental clearance of 1987 had been given before the data on the project's environmental impact had been collected and assessed, as the Union's own guidelines required, and so was no clearance at all. He would have had a committee of experts gather those data, assess the impact and decide whether clearance could be given, further construction on the dam ceasing until then, and each later rise of five metres beginning only after the Grievance Redressal Authorities certified that everyone it would oust had already been rehabilitated. Delay was no ground to refuse relief where the public interest was so demonstrably involved.
Why it matters here. It is the leading Indian authority on the judicial review of a large water resources project. Every subsequent dam case, including N.D. Jayal v. Union of India, AIR 2004 SC 867, on Tehri, is decided within the frame it sets.
Broken down: the four propositions
1. Laches bars a stale challenge to a clearance. A project in which thousands of crores have been sunk and on which States have relied cannot be stopped years later on a defect in a clearance which the petitioner could have challenged at the time. The dissent's answer is that where the public interest is so demonstrably involved, relief should not be refused only because the Court was approached late.
2. Policy is not reviewed on merits. Where to build a dam, and whether the benefits justify the costs, is for the Government. What a court reviews is the process: whether the authority considered the relevant material.
3. Displacement is not per se a violation. This is the proposition most often criticised. The majority's position is that the right infringed is met by a rehabilitation package, so the question becomes the adequacy of that package and its execution, not the legality of the displacement.
4. Pari passu is the operative remedy. The permission is conditional and staged. Up to 90 metres construction could go ahead at once; beyond that, each raising needs the clearance of the Relief and Rehabilitation Sub-group and must keep pace with the implementation of relief and rehabilitation. That is a supervisory remedy rather than a prohibitory one, and it is the model the Court has used for large projects ever since.
Narmada Bachao Andolan: A Dam, a Displacement and a Divided Court
Worked example
A State proposes to raise an existing dam by five metres, submerging four villages, three of them of forest dwellers.
Step one, is the project itself reviewable? The decision to raise is policy. The Court will not substitute its own view of whether the storage is needed.
Step two, what is reviewable? The process. Was an environmental clearance obtained on the material the notification requires. Was forest clearance obtained under the Van Adhiniyam. Was the decision made by the authority that had to make it.
Step three, what about the villages? Under Narmada the displacement is not by itself unconstitutional if there is a proper rehabilitation package, and the raising must keep pace with the implementation of that package, cleared by the body supervising rehabilitation.
Step four, what has changed since 2000? Three things, and a good answer states them. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 made rehabilitation a statutory entitlement rather than a package. The Forest Rights Act, 2006, and its section 4(5) bar eviction until recognition of rights is complete, so a forest dwelling village cannot simply be moved. And N.D. Jayal held that the rehabilitation of the oustees is a logical corollary of article 21.
Step five, so the answer today is stricter than the answer in 2000, and saying so is what separates a good answer from a recitation.
Distinctions
| The majority | Bharucha J, dissenting | |
|---|---|---|
| The 1987 clearance | Cannot be challenged now; laches | Given before the environmental data were collected and assessed, so no clearance at all; delay no bar |
| Policy | Not reviewable on merits | The legality of the clearance is not policy |
| Displacement | Not per se a violation if rehabilitation is proper | Grievance Redressal Authorities to certify rehabilitation before each rise of five metres |
| Remedy | 90 metres at once; further raising pari passu with rehabilitation, cleared by the Sub-group | Construction to cease until a committee of experts assesses the impact and decides on clearance |
What it does NOT mean
It does not mean the Court gave the project a free hand. It declined to sit in appeal over the Government's decision to build, holding that when a decision is taken after due consideration and full application of mind the Court is not to sit in appeal over it, and it directed that every endeavour be made to complete the project as expeditiously as possible; but it made every raising beyond 90 metres conditional on relief and rehabilitation keeping pace.
It does not mean displacement can never be challenged. It means it cannot be challenged as displacement alone. After 2006 and 2013 the challenge is made on the statutes, and those bite.
Narmada Bachao Andolan: A Dam, a Displacement and a Divided Court
And it does not mean pari passu was achieved. The subsequent history is of repeated applications about whether rehabilitation had in fact kept pace, which is the practical criticism of a supervisory remedy: it requires the Court to stay in the case for a generation.
Limits and criticism
Laches against a continuing wrong is a hard doctrine. Most of the submergence had not happened when the petition was filed; the harm was largely prospective.
Deference to policy leaves the largest resource decisions unexamined. The cost-benefit of a dam is exactly the sort of question a resource-management course asks, and the case says a court will not ask it.
And a rehabilitation package is only as good as its execution, which is why N.D. Jayal had to hold that the rehabilitation of the oustees is a logical corollary of article 21 and why the 2013 Act had to make it statutory.
Quick revision
Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751; (2000) 10 SCC 664, decided 18 October 2000.
Four holdings: laches barred the challenge to the 1987 clearance; a policy decision on a large project is not reviewed on merits; displacement of tribal people is not per se a violation where a proper rehabilitation package exists; and construction may go up to 90 metres at once, any further raising only pari passu with the implementation of relief and rehabilitation and on clearance by the Relief and Rehabilitation Sub-group.
Bharucha J dissented: the 1987 clearance was given before the environmental data were collected and assessed; a committee of experts should assess the impact and decide on clearance, construction ceasing meanwhile, with each rise of five metres certified by the Grievance Redressal Authorities; and delay was no bar.
What has changed since: the Forest Rights Act 2006 and its section 4(5); the 2013 land acquisition Act; and N.D. Jayal, which held the rehabilitation of the oustees a logical corollary of article 21.
Test yourself
1. On what ground was the challenge to the environmental clearance rejected? Laches. The petition was filed years after the project had begun and after very large sums had been spent in reliance on the clearance.
2. What does pari passu mean in this judgment, and who applies it? Step for step: beyond 90 metres, each further raising of the height had to keep pace with the implementation of relief and rehabilitation. The Relief and Rehabilitation Sub-group of the Narmada Control Authority applies it, clearing each raising after consulting the three Grievance Redressal Authorities.
3. What did Bharucha J hold? That the environmental clearance of 1987 was given before the data on the project's environmental impact had been collected and assessed, as the Union's own guidelines required; that a committee of experts should assess the impact and decide whether clearance could be given, further construction ceasing until then; that each later rise of five metres should await the Grievance Redressal Authorities' certificate that those it would oust had been rehabilitated; and that delay was no ground to refuse relief.
Narmada Bachao Andolan: A Dam, a Displacement and a Divided Court
4. Name two later developments that make the same challenge stronger today. Section 4(5) of the Forest Rights Act 2006, which bars eviction of forest dwellers until the recognition process is complete; and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, which makes rehabilitation a statutory entitlement. N.D. Jayal holding the rehabilitation of the oustees a logical corollary of article 21 is a third.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.